Tuesday, August 18, 2015

A Thought on the Parasha

Feel free to download and print the Parasha sheet and share it with your friends and family: Click here: Parashat Shoftim

The recent news of an alternative conversion court in Israel headed by some of the most prominent religious-Zionist rabbis - Rabbi Nahum Rabinowitz, Rabbi Yaakov Medan, Rabbi Shlomo Riskin, and Rabbi David Stav - represents a major step toward breaking the Chief Rabbinate's monopoly over matters of personal status in Israel. This is a truly exciting development. Not only will thousands of people who have been denied the opportunity to convert now be able to become Jews in full accordance with halakha, the move also signals a hopeful new era of less centralized institutional rabbinic power in Israel. Greater decentralization means greater diversity and an increase in options (a reality that reflects the true nature of our multi-vocal halakhic system), and have more options and more voices results in more competition, more checks and balances, and - we can only hope - less corruption.

The issue of a high court and centralized rabbinic (or at least judicial) power is a major theme in this week's parasha. In addition to commanding the appointment of judges and officers of the law throughout the land, the Torah also sets up a High Court and takes serious measures to protect its authority. We are told that when a matter cannot be resolved otherwise, the issue should be taken to the place that God has chosen - Jerusalem - and brought before the "priests and the judge who will be at that time" (Devarim, 17:9). This body, understood to be the Sanhedrin or High Court, will issue a ruling which must be followed without deviation. Dissent is not tolerated: "And the person who acts presumptuously, and will not listen to the priest who stands there to serve before the Lord thy God, or unto the judge, that man shall die, and you shall eradicate the evil from Israel" (17:12). The court will act harshly and decisively to stamp out any threat to its authority.

We can understand the need to protect the court's role as the highest authority empowered to interpret the law. If people could interpret and apply the law as they saw fit, general lawlessness would ensue. Nevertheless, it is hard to identify with the harshness of the response - the death penalty! - for any deviation. Moreover, such squelching of opposing and critical voices would seem to give the court absolute, unchecked power. What, then, is to stop absolute power from corrupting absolutely?

As far as the death penalty is concerned, the Rabbis significantly limited its scope. While making it clear that the duty to follow the rulings of the court is incumbent upon everyone, the Rabbis said that the death penalty of the verses is reserved for the zaken mamre, the rebellious elder. Only a great sage, a great legal scholar, can receive such a punishment. If he acts in opposition to the court and, the Rabbis add, rules for others in this manner, then he has positioned himself as a competing legal authority. Theoretical debate is fine, but to rule in practice against the court is not. This can truly undermine the authority of the court, and it must be stopped. The Rabbis impose many more criteria for one to be considered a zaken mamre, effectively making this category moot. With the death penalty effectively removed, how can the court's authority be defended against real opposition?

We are told in a well-known story that Rabbi Eliezer ruled that a certain oven was ritually pure while all other rabbis ruled that it was impure. Rabbi Eliezer cited miraculous signs showing that he was correct: a carob tree was uprooted, a stream of water flowed backwards, and the walls of the study house bent in. The punch line comes when the rabbis say to God: "The Torah is not in Heaven! It is for us to decide!" In this audacious story, the authority of the court is so great that it trumps even God's own claim as to the true meaning of the Torah! But the story doesn't end there, for the court's authority has been challenged not only by God, who in the story chuckles and steps back, but also by a great rabbinic sage, someone who is not willing to step down and go quietly, someone who acts in highly public and demonstrative ways to prove that he is right. This, the story tells us, is a serious threat.

Perhaps the carob, the stream, and the walls of the study house represent the societal structures and the natural order of things. Taken this way, Rabbi Eliezer's insistence on his position against the court can be interpreted as an attempt to reverse the natural order, an act that could shake the foundations of society. And it must be stopped: "On that day, all that objects that R. Eliezer had declared to be ritually clean were brought in and burnt by fire" (Baba Mezia 59b). Without violence and without putting anyone to death, the rabbis demonstrated, firmly and decisively, that challenges to its authority would not and could not be tolerated. But with such absolute authority, who is to keep the court honest? What checks and balances exist over it? For this, we return to the beginning of the parasha: the appointment of judges.

In the United States, the ability of other branches of government to appoint and approve justices and to create lower courts serves as a check to the power of the Supreme Court. This echoes the Torah's mandate that the people appoint the judges and create regional courts: "Judges and officers you shall appoint in all your gates [meaning cities] and all your tribes" (16:18). Regional courts distribute the power; it is not completely in the hands of the High Court. With only a very few cases reaching the High Court for adjudication, almost all the interpretation and application of law is done by the regional courts. In effect, the court system is rather decentralized. Every court makes decisions for the constituents under its jurisdiction, but its decisions must also be recognized by the courts of other jurisdictions if it is to maintain its authority (Rav Moshe Feinstein provides a nice discussion of this in his Dibrot Moshe, Shabbat, 10.2).

In addition to this structural decentralization there is a mandate that the court work to protect the rights of the marginal and disempowered in society as it represents the majority: "You shall not pervert judgment; you shall not respect persons....Justice, only justice, you shall pursue" (16:19-20). Judges must protect themselves against outside influences accordingly: "You may not take a bribe, for a bribe blinds the eyes of the wise and corrupts the words of the righteous" (16:19). According to the Rabbis, this applies even if it the bribe is intended to guarantee correct judgment.

While these are powerful mandates, there is no body to ensure that they are being followed. The court must be its own watchdog. If the judges are found in violation, they can be disqualified with a type of impeachment. Short of that, their own integrity must keep them in check. It is for this reason that, in Yitro's advice to Moshe, the Torah describes the need for high personal character in the judges. This and only this will keep them honest. But such men are hard to find and, once found, can still be corrupted by power. A story is told that when Rav Maimon, the first Minister of Religion in Israel, was looking to reestablish the Sanhedrin he was asked by Ben Gurion, "But where will you find people who are sonei batzah [Shemot, 18:21], despisers of unearned gain?" Rav Maimon responded, "With enough money you can get anything, even sonei batzah."

It is clear that a lot rides on the appointment of judges: who is chosen, who does the choosing, who they represent, and the strength of their personal character and integrity. Outside Israel, halakhic authority is distributed and adherence to it is volitional (as a matter of secular law). By nature, rabbis and the batei din have to be more responsive to those who would come to them. In Israel, however, we have rabbinical courts with real concentrated authority. Until now their authority has been even more centralized than the system described in our parasha. Recent events give us hope that a more decentralized system will continue to develop and take hold. But whether highly centralized or less so, true justice requires the right judges. If we are to have rabbinic bodies with real power, then it is incumbent upon us to make sure that as a society we are living up to our parasha's mandate to ensure that the judges we appoint truly embody "justice, only justice" for the people whom they serve. With this we will be deserving to merit the blessing of Devarim, 16:20: "So that you will live and possess the land which the Lord your God gives you," for as Rashi tells us, "the appointment of fit and proper judges is worthy of giving life to the Jewish People and to cause them to dwell in their land."


Shabbat Shalom!

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